Motion to Set Aside / Vacate Default Judgment (Debt) - West Virginia

IN THE [CIRCUIT / MAGISTRATE] COURT OF [____________] COUNTY, WEST VIRGINIA

Civil Action No. [____________]

Judge / Magistrate: [____________]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to W. Va. R. Civ. P. 55(c) and 60(b)

COMES NOW the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], and respectfully moves this Court to set aside and vacate the default judgment entered against Defendant in this action on [__/__/____], pursuant to W. Va. R. Civ. P. 55(c) and 60(b). In support, Defendant states as follows:

I. INTRODUCTION AND BASIS FOR RELIEF

1. This is a debt-collection action in which Plaintiff [☐ is a debt buyer / ☐ is a collection agency / ☐ claims to be the original creditor] seeking to collect an alleged consumer debt. A default judgment was entered against Defendant on [__/__/____] in the amount of $[____________], plus [interest, costs, and/or fees].

2. Defendant was not validly served and/or had good cause for not responding, has one or more meritorious defenses to the alleged debt, and brings this motion promptly upon learning of the judgment. For the reasons set forth below, the default judgment should be set aside.

3. West Virginia policy strongly favors the adjudication of cases on their merits. Our Supreme Court of Appeals has held that "[i]nasmuch as courts favor the adjudication of cases on their merits, Rule 60(b) of the West Virginia Rules of Civil Procedure should be given a liberal construction." Hamilton Watch Co. v. Atlas Container, Inc., 156 W. Va. 52, 190 S.E.2d 779 (1972) (Syl. Pt. 2).

II. IDENTIFICATION OF THE DEFAULT JUDGMENT

4. Date of judgment. The default judgment was entered on [__/__/____].

5. Amount. The judgment is in the amount of $[____________], consisting of [principal $[____], interest $[____], attorney's fees $[____], court costs $[____]].

6. How Defendant learned of the judgment. Defendant first learned of the default judgment on [__/__/____] by the following means:

☐ A suggestion / notice of wage garnishment served on Defendant's employer
☐ A bank levy / suggestion or freeze of Defendant's bank account
☐ A post-judgment writ of execution, interrogatories, or examination notice
☐ A credit report entry
☐ Other: [____________]

7. Defendant files this motion [____] days after first learning of the judgment, which is within a reasonable time and within the applicable limit under [☐ W. Va. R. Civ. P. 55(c) / ☐ W. Va. R. Civ. P. 60(b) and 60(c)(1)].

III. LEGAL STANDARD

8. Rule 55(c) and the four-factor good-cause test. A motion to vacate a default judgment is addressed to the sound discretion of the court. Cales v. Wills, 212 W. Va. 232, 569 S.E.2d 479 (2002). In determining whether a default judgment should be vacated upon a Rule 60(b) motion, the trial court should consider: "(1) The degree of prejudice suffered by the plaintiff from the delay in answering; (2) the presence of material issues of fact and meritorious defenses; (3) the significance of the interests at stake; and (4) the degree of intransigence on the part of the defaulting party." Parsons v. Consol. Gas Supply Corp., 163 W. Va. 464, 256 S.E.2d 758 (1979) (Syl. Pt. 3).

9. Meritorious defense. A defendant need not prove that it will ultimately prevail; the presence of "material issues of fact and meritorious defenses" weighs in favor of vacating the judgment so that the case may be heard on the merits. Parsons, 256 S.E.2d 758; Hamilton Watch, 190 S.E.2d 779.

10. Rule 60(b) — relief from a final judgment. The Court may relieve a party from a final judgment for, among other reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (3) fraud, misrepresentation, or misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason that justifies relief. W. Va. R. Civ. P. 60(b).

11. A judgment without valid service is void. A court acquires personal jurisdiction over a defendant only through valid service of process under W. Va. R. Civ. P. 4. A default judgment entered where the defendant was never properly served is void for lack of personal jurisdiction and is subject to being set aside under Rule 60(b)(4). W. Va. R. Civ. P. 12(b)(2), (4), (5). [Note: a Rule 60(b)(4) voidness motion must still be brought within a reasonable time; build the record of when Defendant first learned of the suit/judgment.]

IV. GROUNDS FOR SETTING ASIDE THE JUDGMENT

☐ A. The judgment is VOID — defective or no service of process; lack of personal jurisdiction. Defendant was never validly served with the summons and complaint as required by W. Va. R. Civ. P. 4. Specifically: [describe — e.g., "Defendant did not live at the address where service was attempted," "the return reflects service on a person not residing in the household or not authorized to accept it," "no signed certified-mail return receipt exists," "Defendant first learned of the suit only through the garnishment"]. Because the Court lacked personal jurisdiction, the judgment is void and should be vacated. W. Va. R. Civ. P. 60(b)(4).

☐ B. Excusable neglect, mistake, surprise, inadvertence, or unavoidable cause. Defendant's failure to respond was the result of excusable neglect — not intransigence — in that: [describe — e.g., "Defendant was hospitalized," "the papers were misdelivered or received late," "Defendant reasonably believed the matter had been disputed/resolved with the collector," "Defendant did not understand the deadline"]. W. Va. R. Civ. P. 55(c); 60(b)(1).

☐ C. Fraud, misrepresentation, or misconduct. The judgment was obtained through fraud, misrepresentation, or misconduct by Plaintiff or its agents, including [describe — e.g., "a false affidavit or 'sewer service' return of service," "misrepresentation of the amount owed," "concealment of the lack of any assignment"]. W. Va. R. Civ. P. 60(b)(3).

☐ D. Newly discovered evidence. Defendant has discovered evidence that, by due diligence, could not have been discovered earlier, namely: [describe]. W. Va. R. Civ. P. 60(b)(2).

☐ E. Defendant has a meritorious defense (see Section V).

☐ F. Any other reason that justifies relief. [Describe.] W. Va. R. Civ. P. 60(b)(6).

V. DEFENDANT HAS A MERITORIOUS DEFENSE

12. Defendant is prepared to present one or more meritorious, fact-supported defenses that, if proven, would constitute a complete or partial defense to Plaintiff's claim. Defendant asserts the following meritorious defense(s):

☐ Statute of limitations. The alleged debt is time-barred. Under W. Va. Code § 55-2-6, an action on a written contract must be brought within ten (10) years and an action on an oral contract or a debt on account within five (5) years; debt-on-account claims are commonly treated as carrying the five-year period. The last payment/activity on the account occurred on or about [__/__/____], more than the applicable limitations period before suit was filed. [Verify the governing characterization and accrual/last-payment date.]

☐ Not the debtor / mistaken identity / identity theft. Defendant is not the person who incurred the alleged debt and/or the account was opened or used as a result of identity theft. [Describe; attach FTC Identity Theft Report / police report as Exhibit [__].]

☐ Wrong amount. The amount of the judgment is incorrect, inflated, or includes unauthorized interest, fees, or charges. The correct balance, if any, is $[____________].

☐ Debt paid, settled, or discharged. The alleged debt was paid, settled, or discharged (including by discharge in bankruptcy on [__/__/____], Case No. [____________]) and is not owed.

☐ Plaintiff lacks standing / no chain of assignment. Plaintiff is not the original creditor and has not proven a complete, unbroken chain of assignment showing it owns Defendant's specific account. Plaintiff is not the real party in interest. W. Va. R. Civ. P. 17.

☐ Potential separate FDCPA claim—not by itself a defense that the debt is invalid. If a qualifying debt collector failed to provide the notice or verification required by 15 U.S.C. § 1692g, Defendant may have a separate civil claim under 15 U.S.C. § 1692k. A formal pleading is not an “initial communication” under § 1692g(d). Plead such a claim only if procedurally permitted, and evaluate any state-law issue separately.

☐ Other meritorious defense: [____________]

13. These defenses are substantiated by the facts set forth in Defendant's Affidavit, below, and the attached exhibits, and present material issues of fact warranting adjudication on the merits.

VI. NO UNFAIR PREJUDICE TO PLAINTIFF; CONDUCT NOT INTRANSIGENT

14. No unfair prejudice. Setting aside the judgment will cause Plaintiff no unfair prejudice. The relevant inquiry is the prejudice from reopening the case, not the mere loss of the default. Plaintiff retains its evidence and its claim; only the opportunity for a one-sided judgment is lost. Defendant is prepared to proceed promptly.

15. Conduct not intransigent; significant interests at stake. Defendant's failure to appear was not willful or in bad faith but resulted from [lack of valid service / excusable neglect], as set forth in the attached Affidavit. The interests at stake are significant — Defendant faces garnishment of wages or exempt funds on a debt Defendant disputes. The Parsons factors weigh in favor of vacatur.

VII. DEFENDANT'S AFFIDAVIT

STATE OF WEST VIRGINIA )
COUNTY OF [____________] ) to-wit:

I, [____________], being first duly sworn, depose and state as follows:

1. I am the Defendant in this action. I am over the age of eighteen (18) and competent to testify, and I make this affidavit on personal knowledge.

2. I was never properly served with the summons and complaint in this case. [State the facts: where you lived on the date of attempted service; whether you received the papers; who, if anyone, was served; how you actually learned of the lawsuit.]

3. I first learned that a judgment had been entered against me on [__/__/____], when [describe — e.g., "my wages were garnished" / "my bank account was frozen"].

4. I have a meritorious defense to Plaintiff's claim, namely: [state the facts supporting the defense(s) checked above — e.g., the date of last payment, that the account is not mine, that the amount is wrong, that the debt was discharged in bankruptcy].

5. My failure to respond to the complaint was not intentional or the result of any disregard of this Court. [State the facts establishing excusable neglect or lack of service.]

6. I respectfully ask the Court to set aside the default judgment, allow me to defend this case on the merits, and stay any collection efforts in the meantime.

_______________________________________
[____________], Defendant

Taken, sworn to, and subscribed before me this [____] day of [____________], 20[____].

_______________________________________
Notary Public
My commission expires: [__/__/____]

VIII. REQUEST TO STAY EXECUTION AND GARNISHMENT

16. Defendant requests that the Court stay execution on the judgment — including any suggestion or garnishment of wages, bank suggestion/levy, or other post-judgment process — pending the Court's ruling on this motion. W. Va. R. Civ. P. 62. Absent a stay, Defendant faces immediate and irreparable harm from the garnishment of wages or funds that may be exempt and that Defendant needs for basic living expenses, even though the underlying judgment is subject to being vacated.

17. Defendant further requests that any funds already garnished, suggested, or levied be held by the garnishee or the Court, and not disbursed to Plaintiff, until this motion is decided.

IX. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that this Court:

A. SET ASIDE and VACATE the default judgment entered on [__/__/____];

B. STAY all execution, garnishment, suggestion, levy, and other post-judgment collection proceedings pending the Court's ruling, and order that any funds already garnished, suggested, or levied be held and not disbursed;

C. QUASH any outstanding suggestion, writ of garnishment, or execution issued on the judgment;

D. GRANT Defendant leave to file an Answer and defend this action on the merits, with the accompanying [proposed] Answer deemed filed as of the date of the order;

E. Set this matter for a hearing if the Court deems one necessary; and

F. Grant such other and further relief as the Court deems just and proper.

X. PROPOSED ORDER

A proposed Order Setting Aside Default Judgment is submitted contemporaneously with this motion for the Court's consideration.

[PROPOSED] ORDER

This matter came before the Court on Defendant's Motion to Set Aside / Vacate Default Judgment. Having considered the motion, the supporting affidavit, any response, and the applicable law — including the factors set out in Parsons v. Consolidated Gas Supply Corp., 163 W. Va. 464, 256 S.E.2d 758 (1979) — the Court finds that the motion should be GRANTED.

It is therefore ORDERED that the default judgment entered on [__/__/____] is SET ASIDE and VACATED; all garnishments, suggestions, levies, and executions on that judgment are QUASHED and STAYED, and any garnished, suggested, or levied funds shall be returned to Defendant; and Defendant is granted leave to file an Answer within [____] days of this Order.

ENTERED this the ____ day of __________, 20____.

_________________________________
Judge / Magistrate

XI. SIGNATURE

Respectfully submitted this [____] day of [____________], 20[____].

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
West Virginia State Bar No. (if attorney): [____________]
[Street Address]
[City], West Virginia [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

XII. CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [____________], 20[____], I served a true and correct copy of the foregoing Defendant's Motion to Set Aside / Vacate Default Judgment, the supporting Affidavit, and the proposed Order upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) in accordance with W. Va. R. Civ. P. 5 (or W. Va. R. Civ. P. Magis. Cts. 8), by the following method:

☐ West Virginia E-Filing system (notice to all counsel of record, where authorized)
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Email (by agreement / where permitted)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

WEST VIRGINIA PRACTICE NOTES

• Restyled rules (eff. Jan. 1, 2025). The West Virginia Rules of Civil Procedure were restyled effective January 1, 2025, adopting federal-style numbering and headings. Rule 55(c) provides that the court may set aside an entry of default for good cause and a default judgment under Rule 60(b); Rule 60 separates the grounds (Rule 60(b)) from "Timing and Effect of the Motion" (Rule 60(c)). Verify the exact current text before filing.
• Deadline. A Rule 60(b) motion must be made within a reasonable time, and for reasons (1), (2), and (3) not more than one (1) year after entry (Rule 60(c)(1)). Void-judgment (60(b)(4)) and "any other reason" (60(b)(6)) motions are governed only by the reasonable-time standard. Recent authority makes timeliness a front-line issue even for void-judgment motions — file promptly once a garnishment or other enforcement gives notice of the judgment.
• The Parsons four-factor test. Parsons v. Consol. Gas Supply Corp., 163 W. Va. 464, 256 S.E.2d 758 (1979) (Syl. Pt. 3): (1) prejudice to plaintiff from the delay; (2) material issues of fact and meritorious defenses; (3) significance of the interests at stake; (4) degree of intransigence by the defaulting party. Address all four. Hamilton Watch requires liberal construction of Rule 60(b) in favor of the merits.
• Void for defective service. A judgment entered without valid service is void for lack of personal jurisdiction (Rule 60(b)(4)). This is common in debt cases where the consumer first learns of the suit through a garnishment ("sewer service").
• Magistrate Court (different rule and deadline). If the judgment was entered in Magistrate Court (civil claims up to $20,000, exclusive of interest and costs), the circuit-court Rule 55(c)/60 framework does not apply. Setting aside a magistrate-court judgment is governed by W. Va. R. Civ. P. Magis. Cts. 17 and W. Va. Code § 50-4-10(b): the motion must be filed within 20 days after the judgment is entered, and the magistrate may set it aside for good cause. For a default judgment specifically, good cause is shown by excusable neglect or unavoidable cause (Magis. Cts. Rule 17(e)). There is no magistrate-court "Rule 60" and no one-year outer limit — the 20-day window is short and firm. Separately, a party may appeal a magistrate-court judgment to circuit court under Magis. Cts. Rule 18 within the time the rules allow; confirm whether a Rule 17 motion to set aside or a Rule 18 appeal is the proper vehicle.
• Stay collection. Request a stay of execution/garnishment under Rule 62 with the motion; ask that garnished or suggested funds be held pending the ruling.
• Attach the proposed Answer. Many judges expect the movant's proposed responsive pleading to accompany the motion so the case can proceed immediately if relief is granted.
• WVCCPA leverage. The West Virginia Consumer Credit and Protection Act (W. Va. Code §§ 46A-2-127, -128; remedies § 46A-5-101) is a robust consumer statute; collection-suit misconduct may support a defense and a counterclaim after the judgment is vacated.

Sources and References

• West Virginia Rules of Civil Procedure (restyled, eff. 2025): https://www.courtswv.gov/sites/default/pubfilesmnt/2025-02/RCP%20Final.pdf
• West Virginia Rules of Civil Procedure for Magistrate Courts: http://www.courtswv.gov/legal-community/court-rules/rules-of-civil-procedure-for-magistrate-court
• W. Va. R. Civ. P. 55(c) — setting aside a default / default judgment.
• W. Va. R. Civ. P. 60(b), 60(c) — grounds for relief from a final judgment; timing (reasonable time; one year for reasons (1), (2), (3)).
• Parsons v. Consol. Gas Supply Corp., 163 W. Va. 464, 256 S.E.2d 758 (1979) — four-factor good-cause test: https://law.justia.com/cases/west-virginia/supreme-court/1979/14329-3.html
• Hamilton Watch Co. v. Atlas Container, Inc., 156 W. Va. 52, 190 S.E.2d 779 (1972) — Rule 60(b) liberally construed; merits favored.
• Cales v. Wills, 212 W. Va. 232, 569 S.E.2d 479 (2002) — good cause; abuse-of-discretion review.
• W. Va. Code § 55-2-6 (limitations — contracts): https://code.wvlegislature.gov/55-2-6/
• W. Va. Code § 46A-2-128 (WVCCPA — unfair/unconscionable means): https://code.wvlegislature.gov/46A-2-128/
• W. Va. Code § 46A-5-101 (WVCCPA — civil liability): https://code.wvlegislature.gov/46A-5-101/
• Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.: https://www.ftc.gov/legal-library/browse/rules/fair-debt-collection-practices-act-text
• CFPB — time-barred debt: https://www.consumerfinance.gov/ask-cfpb/can-debt-collectors-collect-a-debt-thats-several-years-old-en-1423/